HARTOSH SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 431/2024

[2024] HKCFI 1806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 431 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Notice of Decision dated 29 June 2018 of the Director (“the Director’s Decision”), which the applicant had appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  By Decision dated 4 March 2021, the Board dismissed his appeal (“the Board’s Decision”).  His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 4 June 2021.  His application was filed on 7 March 2024, which is late for more than 3 years and 8 months.  This issue will be dealt with below.

2.  The applicant’s application for leave for judicial review of the Director’s Decision must fail in limine as he had already appealed to the Board[2]. His remedy is for judicial review of the Board’s Decision.  I shall therefore treat his application as for leave to apply for judicial review of the Board’s Decision.

3.  The applicant asked for a hearing and he appeared before this Court on 8 July 2024.  

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.  The applicant, aged 50, is an Indian.  He entered Hong Kong as a visitor on 20 May 2005 and overstayed since 4 June 2005.  The applicant was arrested by the police on 13 March 2007.  He made a torture claim on 15 March 2007, which was rejected on 28 March 2013.  His subsequent appeal was also dismissed on 28 May 2013.  The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[3] on 8 April 2013.  The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Indian Congress Party (“INC”) due to political dispute.

6.  According to the applicant, his uncle was a member of Shiromani Akali Dal (“SAD”) and an editor of a political magazine that criticised INC (“the magazine”).  Under the influence of his uncle, the applicant became a supporter of SAD during the election period in 1990.  In 2001/2002, the applicant started to have conflict with INC members, during which they would use abusive language against each other and sometimes would even escalate into fights.  In around 2002/2003, the applicant became a target of INC and he was hit by INC members with hockey sticks.  The applicant suffered minor bruises and pain on his upper back, for which he did not seek any medical treatment.  Meanwhile, although the applicant had reported the assault to the police 2 - 3 times, no action was taken by them.  

7.  In mid-2003, the applicant relocated to his friend’s home to avoid INC members and stayed there for 6 - 7 months.  In October 2004, the applicant went back to his hometown to visit his family.  On 8 October 2004, the applicant was hit by a car from behind when he was driving his motorcycle with his friend (“the traffic accident”).  He lost consciousness as a result and was admitted to hospital, while his friend was killed.  The applicant suffered serious injuries to his face as well as his right leg and was hospitalised for 26 days.  

8.  The applicant’s friends overheard from the owner of a roadside restaurant that the traffic accident was plotted by INC.  Meanwhile, upon investigation by the police, it was discovered that the owner of the car was an INC supporter.  Although the car owner was arrested for attempted murder, he was subsequently released, which the applicant believed was due to his influence in INC.  

9.  As the applicant was told by his friends that INC was keeping an eye on him, he left India for Hong Kong through Thailand on 4 May 2005.  While in Hong Kong, the applicant learnt from his family that his uncle passed away in 2006/2007 and the magazine was taken over by others.  As his uncle was the root of problem, the applicant’s family tried to negotiate with INC members to let the applicant off, but they refused to compromise.     

10.  The applicant considered internal relocation not viable because INC had a strong network within India, so that he would be easily traceable.  Meanwhile, he had never heard of the various kinds of protection offered by the Indian government.  

11.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 June 2018 (“the Director’s Decision”).

The Director’s Decision

12.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) it was merely hearsay that the traffic accident was plotted by INC [12]; (ii) it is unlikely that the applicant would be subjected to real and foreseeable risk of harm upon return to India given the low intensity and frequency of past ill-treatment from the INC members [13] - [14]; (iii) state protection would be available to him [16] - [18]; (iv) internal relocation would be viable [15], [19] - [25] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26] - [31] or Persecution risk [32] - [37].  

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  The hearing was scheduled on 7 August 2020, for which the applicant failed to attend.  Notice of the Board’s intention to determine the applicant’s appeal in his absence was then sent to him, but the applicant failed to respond within 7 days.  The appeal was therefore determined in his absence [19] - [20].

15.  Due to the applicant’s absence, the Board was unable to ask him questions to clarify various ambiguities.  The Board noted from the country of origin information (“COI”) that SAD rather than INC was in power at the time the applicant made his non-refoulement claim [37] - [38], [75] - [77].  The Board cast further doubts towards the applicant’s claimed threats given that his uncle and the successor of the magazine were not targeted by INC despite they are more influential than the applicant [100] - [101].  His failure to make a non-refoulement claim until after he was arrested was also inconsistent with the behaviour of someone genuinely in fear [104] - [106].  

16.  Based on such findings, the Board found the applicant not credible [108].  In any event, even if the evidence given by the applicant was accepted, the Board considered what he experienced fall far short of severe pain or suffering and that his future risk of harm would be extremely low [116] - [117].   

17.  The Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [7] - [14], [121] - [128].  Furthermore, state protection and internal relocation would also be available according to the COI [129] - [139].

18.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

19.  The applicant has filed Form 86 on 7 March 2024 for leave to apply for judicial review of the Board’s Decision.

20.  In his affirmation in support of his application,  he attached a written submission with the following grounds:

(1)  the adjudicator accepted his story, but then reached a decision that his attacker would not seriously harm or kill him.  This is internally inconsistent and illogical, such that it is Wednesbury unreasonable and irrational, without taking into account his right to life;

(2)  the Director did not give proper importance to state acquiescence; and

(3)  the Director did not give enough weight to his argument before reaching his conclusion.

DISCUSSION

21.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant complained that the Board was subjective in its assessment of his case and it is unreasonable for it not to believe his evidence.

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.  For the reasons given by the Board above, the Board disbelieved his evidence and further found that state protection is available to him and internal relocation is viable.  

25.  As to the grounds raised by the applicant in paragraph 20, he has misunderstood the Board’s reasons.  The Board did not accept his evidence that he was seriously hurt.  As he was absent before the Board, the Board considered his evidence by reference to the records of the interview between him and the immigration officer.  In paragraph 65 and paragraph 66, the applicant had given two different names of the driver, who allegedly drove the vehicle to hit him.  The adjudicator was about to clarify from him which drive was the one he referred to.  He was unable to do so as the applicant was not before him.  Having considered other evidence, at paragraph 108, the adjudicator said:

“I reject A-P’s evidence as being not credible.”

26.  Since the adjudicator had rejected his evidence, there is nothing wrong for him to say that the applicant would not be subjected to serious harm or death if he returned to his own country.

27.  Ground (2) and Ground (3) fail as they relate to the Director, not to the Board.  The Board’s Decision has superseded the Director’s Decision.

28.  There is no reason that this Court should interfere with the Board’s Decision.

29.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

30.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1] . Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

[2] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

[3] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115